Unit 2: Constitution Flashcards
The strengths of the UK constitution (flexibility)
+As it is uncodified, it is very flexible. This allows Parliament to easily amend laws as society changes (e.g. Marriage (Same-Sex Couples) Act 2013.
+Allows devolution due to increasing nationalism in Scotland, NI and Wales
+Dunblane Massacre (1998) - UK could pass legislation restricting gun ownership.
- The US has a codified constitution that makes amendments very difficult. (e.g. 2nd amendment issues)
The strengths of the UK constitution (tried and tested)
+As we’ve had an uncodified constitution for many centuries, we know it works and a conservative would agree that the constitution should develop naturally over time as it’s organic.
+they say it’s “tried and tested”
+traced back to Magna Carter (1215) which has been developing for 800 years
The strengths of the UK constitution (strong, decisive government)
+Govt doesn’t need to go through a lot of processes to ensure their decisions follow the constitution, they can just make the decision due to parliamentary sovereignty.
+useful during a crisis
+2007-2008 Brown government recapitalisation of struggling financial institutions.
Strengths of the UK constitution (limiting judicial power)
+with a codified constitution, the judiciary can have too much power (e.g. USA)
+This is unfair as they are not a democratically elected body.
+in the US, supreme court can “strike down” legislation it considers unconstitutional (judicial review) this is problematic as judges are not elected
Weaknesses of the UK constitution (flexibility)
- too much opportunity for a drift towards executive power.
- e.g. cash for honours (2006), expenses scandal (2009 and ongoing, MPs claiming money for ridiculous things)
- PM nominates peers to the House of Lords
Weaknesses of the UK constitution (unprotected rights)
- an uncodified constitution doesn’t protect human rights due to parliamentary sovereignty, any human rights law (including HRA 1998) can be amended or repealed.
- “snooper’s charter” - counter-terrorism and security bill (2015)
- Conservatives are proposing abolition of the HRA 1998
Weaknesses of the UK constitution (uncertainty)
- conventions can be easily ignored, as they are not written down or enforced.
- in 2011, Theresa May refused to resign and publicly blamed civil servant (Brodie Clark) for the passport fiasco (neglecting individual ministerial responsibility). She should have resigned.
- Salisbury convention is regularly ignored by the House of Lords despite it being a well known convention.
Weaknesses of the UK constitution (conflict)
- authoritative texts written many years ago may conflict with current statute laws.
- EU is above UK law so the UK could pass statute laws that conflict with EU law. (Factortame case of 1991, where UK broke EU law by saying ships that wanted to be registered in the UK had to have a majority of British owners)
To what extent has location of sovereignty changed in the UK (+devolution)
- Creation of Scottish Parliament, Welsh Assembly (both 1999) and NI Assembly (2000), power over local issues has been devolved to them from Westminster.
- In Scotland, most legislation is determined at local levels.
- in practice, devolution is a one-way process and a permanent feature of the UK. Power devolved, is not power retained.
- Smith Commission (2014) declared Scottish Parliament is permanent
- in 2011, Wales was granted primary legislative power.
To what extent has location of sovereignty changed in the UK (+EU)
- EU has supernational powers, so EU law is above all laws made in EU countries (EU has regulatory/legislative power over member states
- Doctrine of supremacy on areas of EU competency
- Doctrine of direct effect - EU law doesn’t require the approval of national legislatures.
- Factortame of 1991 clearly established these principles.
- current debate over a migration cap - EU withdrawal would be necessary to apply a cap to EU migrants as the “free movement of people” is an EU competency
To what extent has location of sovereignty changed in the UK (+referendums)
- Shift from Parliamentary sovereignty to popular sovereignty
- In principle, Westminster can ignore the result, in practice that is impossible.
- Since 1997, there have been far greater referendums (e.g. on devolution, AV, Scott Independence)
- Edinburgh agreement (2012) UK/Scott government signed legal document guaranteeing the result of the Scott Independence referendum would be respected.
- In 2004, Blair govt devolution policy was halted as a direct consequence of the NE devolution rejection in referendum.
To what extent has location of sovereignty changed in the UK (+executive dominance)
- as a result of fusion of power between executive and legislative in Westminster, there is government majoritarianism that can lead to elective dictatorship. In reality, the executive is sovereign, not Parliament.
- Blair’s landslide victories meant there was never a defeat on govt legislation in 10 years.
- government control of parliamentary agenda can also prevent parliamentary oversight/scrutiny - prevented debate on health and social care bill (2011)
To what extent has location of sovereignty changed in the UK (-devolution)
- Westminster still holds power to make decisions about the country and foreign issues, not just English issues, but also Welsh, NI and Scottish issues. It has only devolved certain powers.
- Also, due to Westminster’s ability to “make, amend and repeal” any law it wishes, it could, in theory, take back the devolved power. Showing sovereignty has not moved from Parliament to the devolved states.
- Parliament could repeal Scotland Act (1998), which would automatically abolish the Scottish Parliament. -Smith commission report, which declared the “permanence of Scottish devolution is non-binding”
To what extent has location of sovereignty changed in the UK (-EU)
- At any point, the UK could leave the EU and then EU laws would no longer be above UK laws. As Parliament would essentially make the decision to leave, sovereignty remains with Parliament rather than the EU.
- Pro-Europeans argue Westminster has not lost sovereignty, but have pooled sovereignty instead.
- Parliament could repeal the European Communities Act (1972) which would lead to automatic withdrawal from the EU
- The govt is currently seeking to renegotiate the membership terms.
To what extent has location of sovereignty changed in the UK (-referendums)
- In principle, Parliament can ignore the result of a referendum and act as they wish in regards to the debated issue. The result is non-binding
- Government also determines topic and timing of referendums.
- 2014 Scott referendum - SNp wanted a 3rd option (“devo max”) but Westminster rejected this saying it 2011 had to be yes/no.
- 2011 AV referendum was result of coalition government compromises, not popular will.
